Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) (No 2)

Ferguson brought proceedings against the Tasmanian Cricket Association (trading as Cricket Tasmania) alleging sexual harassment and discrimination. In the course of those proceedings, Ferguson made an application to suppress access to the originating application by non-parties. The application was dismissed by the court. The applicant appealed to the Full Court, which allowed the appeal and remitted the matter back to the primary judge to reconsider the application under the correct statutory provision. The primary judge was then required to decide whether the application should be granted and if so, whether the order sought should be made.

The primary issue was whether the court should suppress access to the originating application by non-parties. The court considered whether r 2.32(3) of the Federal Court Rules 2011 (Cth) should be construed commensurately with s 37AG of the Federal Court of Australia Act 1976 (Cth) (Act). The court considered whether the making of the order sought was justified by any of the grounds in s 37AG. The court held that there was no justification for making the order sought under s 37AG(1)(a) and (b) as there was no risk of substantial harm to a person, and it was not necessary to do so to protect the privacy of a person. The court also held that there was no justification for making the order sought under s 37AG(1)(c) as there was no reasonable excuse for the non-parties to have obtained access to the originating application.

The interlocutory application was dismissed. The applicant’s costs of that application, including the costs of today, were reserved.